No jury costs for first nonsuit, high court says

Even though the trial judge remarked that imposing jury costs on a nonsuiting plaintiff was “pretty standard here in this court,” the Supreme Court of Virginia finds any such jury fee unwarranted under Virginia law.

In Martin v. Duncan, the wrongful death plaintiff didn’t like the way things were going at trial and took a nonsuit. The defendant asked the judge to order reimbursement for an expert deposition and travel expenses. No dice, said the judge, since the code did not mention such expenses, but he did charge the plaintiff $540 for the cost of the jury.

The fee was improper, according to today’s opinion penned by Justice Cynthia D. Kinser. While the code provides for payment of expenses for expert trial witnesses in the case of a first nonsuit, it makes no provision for any other penalties.

As Kinser wrote, “[J]ury costs are not costs authorized by statute to be imposed on a plaintiff exercising his absolute right to a first nonsuit.”

When it comes to nonsuits, therefore, unless the defendant brings an expert to court, the first one’s still free.